Friday, July 30, 2010

The Pentagon Papers Caseis remembered mostly for what it held--that the govt was not entitled to enjoin publication of the Pentagon Papers, even though they were illegally divulged by Daniel Ellsberg, because the govt's general assertions of a national security interest did not justify a prior restraint. Yet implicit in that holding was the possibility that in a case in which the govt did make a sufficient showing of a particularized national security risk, it could get an injunction. Here I want to consider the application of that tacit principle to WikiLeaks.

To begin, the internet/offshore nature of WikiLeaks means that, as a practical matter, injunctive relief would be pointless. The operators of WikiLeaks would not obey an injunction and they may be beyond the jurisdiction of U.S. courts. However, suppose that someone connected with WikiLeaks were to come into U.S. custody. Would the First Amendment bar his prosecution or civil liability?

In a recent WSJ blog post on this topic, Jack Balkin is quoted as saying that although the standard for criminal punishment is unsettled, he "assumes the standard is going to be very very high too." Very very high, but perhaps not quite as high as the standard for getting a prior restraint (at issue in Pentagon Papers), because that's the toughest standard to meet. To be sure, this is a double-edged sword: For post-publication sanctions, the harm has already been done, so while the risk to free speech is lessened, so is the benefit to the govt. Of course, in the Pentagon Papers Case itself this was true: By the time the Supreme Court heard the case, the information had been published. Accordingly, it's probably fair to say--as Balkin does--that it's not much easier for the govt to subject someone to retrospective (criminal or civil) liability for publishing true information unlawfully divulged than it is to get an injunction--at least where the publisher did not participate in the illegality leading to its being divulged.

Interestingly, the two most relevant post-Pentagon Papers cases seem to lend further support to the idea that in a proper case, retrospective liability (or an injunction if it would be obeyed) might be permitted. In Landmark Communic. Inc. v. Virginia, the Court declined to adopt a general rule holding"that truthful reporting about public officials in connection with their public duties is always insulated from the imposition of criminal sanctions by the First Amendment. " Instead, as in The Pentagon Papers Case, the Court in Landmark simply held that the showing necessary (for criminal liability there) had not been made. And then again in Bartnicki v. Vopper, the Court refused to give a fully categorical answer to the question whether information obtained innocently by the publisher but through illegal means by the party who brings it to the publisher may be the basis for a prosecution; the Court found the govt interests in the particular case did not justify infringing free speech.

Thus, the Court has left itself some wiggle room in the doctrine, but if the First Amendment does allow (civil or criminal) liability for WikiLeaks, it seems likely that is for one or both of two reasons: 1) Unlike the NY Times, the Guardian, and Die Spiegel, perhaps WikiLeaks was not only involved in disseminating the information but also in illegally removing it from DoD; 2) The damage done by the WikiLeaks Afghan files exceeds what was done by Ellsberg's leak.

I have no way of knowing whether 1) is true and I am highly dubious about 2). I've heard one analyst say that a sophisticated enemy could put the pieces together from raw data in the leaks to learn the identities of informants and agents, but that same analyst also said things that struck me as plainly lacking credibility. The biggest revelation--that Pakistan's ISI or elements therein have been supporting the Taliban--is not really news. Seymour Hersh has been reporting more or less the same thing for years. Although I've hardly read the whole trove, my impression is that the leaked material is much like the Pentagon Papers: Their release is bad for an administration that has been trying to sell its troop buildup as a winning strategy but not directly harmful to national security. The Pentagon Papers Case and subsequent cases could be readto require, as a basis for permissible injunctive or retrospective relief, that the disclosure be of the form "the 101st Airborne is dropping on Hill X at time T." If so, then the WikiLeakers would appear to be safe for now.

Thursday, July 29, 2010

My prior post on "constitutional polymorphism" inspired some vigorous challenges in the comments. After briefly summarizing them, I want to offer what I now regard as a better example than the one I gave earlier in the week. In a third (and probably final) post on this subject next week, I'll connect my thoughts on polymorphism to the "new originalism."

Recall that "polymorphism" refers to the idea that a single word or phrase in a single statute or constitutional provision might mean different things in different contexts. Justice Scalia has attacked polymorphism in statutory interpretation but, as I noted in Monday's post, Jon Siegel wrote an excellent article explaining both that it is not novel (as Scalia claimed) and that it can sometimes be normatively justified. I suggested that polymorphism may provide a good account of how it is that the Senate's role in confirming executive officials is to defer substantially to the President, while it can show the President less deference with respect to judicial nominations. I also gave examples of how "due process" and "equal protection" mean different things in different contexts. Even as I acknowledged that the latter two examples aren't exactly polymorphic--because the capacious terms "due" and "equal" can have a consistent meaning even as they entail different tests in different contexts--I said that this formal distinction is not especially important: The important point is that the terms are sufficiently open-ended to give courts the power to interpret them differently based on context.

A couple of readers objected that the formal difference between a vague term like "equal" and treating a single term to mean different things is important. In our back-and-forth, I acknowledged that even my core example--the meaning of "advice and consent"--is not really polymorphic: Consent always means a majority vote of the Senate, even as the criteria for consent (which are not listed in the Constitution) may vary depending on whether the Senate is considering a nominee to executive or judicial office. Accordingly, I want to substitute a case of true constitutional polymorphism

The First Amendment provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." What does the word "no" mean in the First Amendment?

When it comes to "an establishment of religion," "no" means no. That is, if the courts determine that a law does respect an establishment of religion, then the law is unconstitutional. But with respect to a law "prohibiting the free exercise" of religion or a law "abridging the freedom of speech, or of the press," "no" means "almost no." If the courts find that a law does one of these things, the law is not automatically invalidated but is instead subject to strict scrutiny. Thus, we have an example of constitutional polymorphism: The Establishment Clause is absolute while the rest of the First Amendment (putting aside petition) is merely a very strong presumption--even though the very same single word "no" does the work for each clause.

Is that sensible? Sure. The Establishment Clause may be best understood as a structural principle that strips the government of jurisdiction over religious matters. That's not the only plausible interpretation of the Establishment Clause, to be sure, but it is a plausible reading, and if one accepts that reading, then once one determines that some law--authorizing organized public school prayer, say--attempts to exercise power over religious issues, then the law is ipso facto unconstitutional, much in the same way that a law that purports to regulate interstate Commerce but in fact exceeds the bounds of the Commerce Clause is automatically unconstitutional, without any further requirement that the law be subject to strict scrutiny. By contrast, the individual rights provisions of the First Amendment shield individuals and thus can be overridden in cases of compelling need.

I'm NOT attempting to justify these particular doctrines. I'm simply saying that they're plausible accounts of the doctrines we have--even though the single word "no" must be given different meanings with respect to the different clauses of the First Amendment in order to make them work.

Wednesday, July 28, 2010

At the beginning of this month, I wrote a column for FindLaw (here) discussing the easy case for extending unemployment benefits for the long-term unemployed. Shortly after I wrote that column, I was contacted by a producer at a public radio station in Wisconsin. He wanted me to appear on an on-air debate program to argue against an (to that point unnamed) opponent of extending unemployment benefits. Last week, I was contacted by a producer at another public radio station, this one in New Hampshire, who asked me to do the same thing. In both cases, I declined. Here, I will discuss the very difficult question of whether to engage in a public debate, when the underlying issue is completely one-sided.

First, however, it is worth recalling why the underlying issue -- the extension of long-term unemployment benefits (which have finally been enacted, over the objection of Senator Ben Nelson as well as every Republican Senator not from Maine) -- is a non-question as a matter of economics. The easiest way to do this is simply to review the arguments offered by Senate Republicans and their supporters:

(1) "Subsidizing something encourages it, so giving benefits to people who are unemployed simply discourages them from finding jobs." In a healthy economy, this would be an empirical question. In the current economy, it is simply absurd. Ignore the fact that, to continue to collect benefits, a person must demonstrate that he has actively continued to seek employment. Ignore the fact that unemployment benefits are so low that no one would turn down a job in order to live on those benefits. Just consider the big picture: When there are no jobs, it does not matter whether policy marginally discourages some people from sending out resumes. No opponent of extending benefits did anything more than repeat the claim that unemployment benefits act as a "work disincentive." Benefits might have that effect in some contexts, but definitely not in today's economy. Not even close.

(2) "People won't spend their benefits, so they won't stimulate the economy." This was the trial balloon floated by George F. Will that I discussed in my Dorf on Law post, "Permanently Stupid" (here), which extended my discussion of the issues in my FindLaw column. To put it succinctly, there is no empirical or theoretical basis for the belief that people who have been out of work for months and months would not spend their benefits immediately.

(3) "Extending benefits will increase the deficit." Most of the time, this argument is simply made as a stand-alone, res ipsa loquitur argument. Deficits bad, so unemployment benefits bad, too. I have only seen one attempt to put an actual argument behind this claim. The dean of the University of Rochester's business school, an economist (and former contemporary of mine from grad school), argued that deficits cause the federal government to compete for loanable funds from businesses, which prevents them from investing to expand their operations. Many readers will recognize this as the financial version of the "crowding out" argument.

The problem is that that argument only has any purchase at all if private businesses really are competing for loans with the government. Today, they most definitely are not. In fact, the big problem today is that so many companies are sitting on huge piles of cash, having slashed payrolls and run up record profits. The reason they refuse to invest all that money is that the economy is too weak to justify investments in new plants and equipment. If they wanted to expand, they certainly would not need to compete with the government for scarce funds. Like argument #1 above, therefore, this argument is simply an attempt to use an argument that is relevant only to healthy economies to defeat an argument in a very sick economy. The argument is simply wrong, as applied.

Given that background, one might think that I would have jumped at the opportunity to debate the issue on public radio. The other side could repeat their non-arguments, and I could hit the softballs out of the park. As a former high school and college debater, my salivary glands were positively pulsating.

Instead, I declined both invitations. Here is what I wrote in response to one of the producers: "While you say that there are 'schools of thought on both sides,' the fact is that one of those two sides has no economic evidence on its side and bases its opposition to unemployment benefits on a crass political calculation. Covering this issue as if there are two reasonable sides to be heard, with both sides presumed to be arguing in good faith, is simply not accurate. It is like the 'debate' over cigarette smoking (until about ten years ago), when one side (public health scientists) said that cigarettes cause cancer, and the other side (cigarette manufacturers) said that there is no link between cigarettes and cancer. Or the climate change debate, where every credible climate scientist says that humans are causing the planet to grow hotter, but the other side says that a harsh winter in Washington, DC proves that Al Gore is wrong. Finding people who are motivated to say something clearly wrong is not difficult, but they are still clearly wrong." (This was not the entirety of the email. I tried to make it clear that my disdain was not aimed at the person who invited me, of course; and I hope that the totality of my message was emphatic without being disrespectful.)

I am sure that the producer who read my email wondered why I was not anxious to go on the air and say exactly what I had said in the email -- taking an argument that is clearly wrong and setting the public straight about it. Is that not why I write on FindLaw and Dorf on Law? Would my dean not be happy to know that I had appeared on radio shows around the country? Would I not be putting myself on track for more such appearances, expanding my reach and establishing myself as a public expert on important issues? (Let us set aside the presumably paltry audiences for these particular shows. Word of mouth for future appearances is apparently part of this game.)

As my email suggests, the problem is that appearing on a stage with another person for a debate lends credence to the idea that there is a legitimate, good-faith argument over which two people can have a spirited disagreement. When that is true, I enjoy debating. When it is not, the event is a sham. When such a sham is over, even relatively informed listeners are tempted to say, "Well, there are two sides to every issue; and the experts disagree."

Media outlets, of course, simply want to present a "controversy," even when the only source of a controversy is political opportunism. Producers -- especially, I suspect, producers of programs on public radio stations -- dare not treat an issue as having only one legitimate side, at least when that side is the liberal one. Better to be "even-handed" and simply allow two people to go at it. The producers are simply trapped by the politics of modern journalism.

Obviously, this conundrum is neither isolated nor new. In any event, it poses an impossible choice: allow the crazies to get away with saying ridiculous things, or get in the mosh pit with them and be treated as simply another mud-slinger. As long as there are people who are willing to repeat (and repeat and repeat) statements that are simply false, the media will slavishly treat the contrived controversy as a legitimate debate. There is no way to win that game.

Monday, July 26, 2010

In my latest FindLaw column, I discuss Lindsey Graham's speech last week explaining why, despite disagreeing with Elena Kagan on issues and philosophy, he would vote to confirm her. In a nutshell, Graham says that the proper role of the Senate in judicial confirmations is to check the nominee's professional qualifications and character, but not his or her substantive views. I argue that Graham's approach is certainly a legitimate one with a respectable tradition, but not, as he says, the only approach permitted by the Constitution. In the course of examining Graham's argument, I explain that one reason his invocation of Alexander Hamilton's views from Federalist No. 76appears misplaced is that Hamilton was talking in the relevant portion of that essay about the role of the Senate in confirming executive officials, not judges or Justices. It's appropriate, I say, for the Senate to apply more substantive standards when considering nominations to a life-tenured judiciary charged, among other things, with checking the President, than when considering nominations to serve in the President's administration to carry out the President's policies.

Here I want to raise and then respond to a potential objection (not discussed in my column) to the foregoing line of reasoning: The Constitution confers the "advice and consent" power for judicial and executive officials in the same sentence; it is literally the same power; thus, according to this objection, "consent" cannot mean one thing with respect to judicial officials and another thing with respect to executive officials. Justice Scalia has espoused that view with respect to statutes: A single word or phrase in a single statute must have the same meaning across contexts. And, the objection would conclude, it applies to the Constitution as well.

However, as Jon Siegel showed in a nifty 2005 Texas Law Review article (pre-publication version here), "polymorphism"--the practice of giving a single word or phrase in a single statute different meanings in different contexts--is both well established and normatively appropriate (in certain circumstances). Aaron Leiderman wrote a nice piece in the Administrative Law Review (pre-publication version here) extending and applying these principles to the agency context. What about "constitutional polymorphism?" Can a single word or phrase in a single clause of the Constitution (such as "consent") mean different things in different contexts? It strikes me that the answer is almost surely "yes," but that if it's "no," it's only "no" in a strictly formal sense.

Consider the Supreme Court's procedural due process jurisprudence, which, under the leading case, balances the government interest in expeditious resolution of disputes against the private interest in avoiding an erroneous deprivation of an interest in life, liberty, or property, to determine what process is "due" in any given case. In a formal sense, we could say that the meaning doesn't change. Everyone is entitled to exactly the process that is "due" him or her under the circumstances; it's just that different circumstances demand different processes. Or consider the different tiers of scrutiny under the single Equal Protection Clause. Here too, we could say that the term "equal protection" always means the same thing but that this one thing has different entailments in different circumstances. But this move--like the parallel move to avoid polymorphism under the Due Process Clause--strikes me as highly formalistic. That is why both Justices Marshall and Stevens--who, in this context, were critical of constitutional polymorphism--sometimes complained that the Court's equal protection jurisprudence ignored the fact that "there is one Equal Protection Clause." Similar points have been made by conservative Justices objecting to decisions scrutinizing affirmative action programs less rigorously than other race-based classifications. These criticisms may be right or wrong on the merits but I think they correctly understand that the formal move of saying everyone gets the same definition of equality at some "ultimate" level, ignores the substantive polymorphism.

So, to return to the hypothetical objection to my objection to Graham's use of Federalist No. 76: Yes, the conditions under which the Senate can or should withhold consent from a Presidential nominee can differ based on the nature of the office. And that's perfectly consistent with the way in which the Constitution is generally interpreted.

A front-page story by Adam Liptak in yesterday's NY Times explains that the current Supreme Court is more conservative than at any time in decades. Although that is the headline and the subject of about half the story, the other half is essentially a summary of the findings of political scientists who study the Court by coding decisions as conservative or liberal. Liptak either quotes or cites all but one of the leading poli sci "attitudinalist" (the exception being Jeff Segal) and though he also mentions criticisms of the attitudinalists' methodology, he notes that these are marginal quibbles and that "the measures are generally accepted in the political science literature." That is a fair characterization--although potentially a misleading one because the attitudinalists' measures and findings are generally not accepted in the legal academic literature. They are generally (though not invariably) ignored by legal academics.

To be sure, that's changing. Barry Friedman, Ted Ruger, Lori Ringhand, and others (including, from time to time, myself) have tried to integrate the political science findings with legal analysis, but most of us when not specifically engaged in that effort--and the vast majority of scholars who write about the work of the Supreme Court from within legal academia--continue to write and to teach as though doctrine and interpretive methodology matter a good deal more than they do.

It's striking to note that Liptak's long article makes no mention of either doctrine--things like the multi-part tests for when a law is invalid under equal protection or free speech--or methodology--things like originalism in its various flavors, living Constitutionalism, pragmatism, etc. The attitudinalists do not contend that these factors matter for nothing, and they would be wrong if they did: Sometimes Justice Ginsburg will vote for a conservative result because she's worried about preserving the doctrine (of broad federal power, say) for other cases; sometimes Justice Scalia will vote for a liberal result because it fits nicely with his methodological commitments. The number crunchers don't accurately predict such votes, but their approach is sufficiently powerful that these surprising results amount to little more than rounding errors.

Here I should register the obligatory caveat that the attitudinalists' models do not show that law is bunk. As a court of last resort with discretionary control over its own docket, the SCOTUS tends to pick cases as to which the conventional legal materials are largely indeterminate (with apologies to Ronald Dworkin and followers who think there really are right answers even in such hard cases). So doctrine could be determinative in most cases and yet we would find that in the SCOTUS it's swamped by ideology precisely because of the selection bias for cases in which doctrine is not outcome-determinative. Something similar could be said about methodology: By themselves, most methodologies produce indeterminate results given the level of abstraction at which they operate; they can be operationalized by doctrine where it's controlling, but again, just about by definition, doctrine isn't controlling in the cases the Court takes.

For observers, this is all quite interesting. For the Justices themselves, it's a challenge to their very existence. As Liptak says, some judges find the attitudinalist project offensive, because they do not admit--not even to themselves--that they are deciding cases based on ideology. And at the level of conscious cognition, they aren't. But the facts don't lie. What should a conscientious judge do?

One answer would be to try to surface ideological biases and control for them. Yet presumably they're already doing that, and it probably wouldn't work. There is evidence that alerting people to their biases does not necessarily cure them of those biases (and can sometimes exacerbate them). In the end, I suspect that other than resigning, the best that a Justice can do is to proceed as before.

It's not all that different from the situation all of us may face: Perhaps all of our thoughts and actions are the product of microscopic physical forces. If so, we "feel" as though we are exercising free will but that is simply an epiphenomenon or illusion. All of the action is taking place at the biochemical level. (Note for purposes of this hypothesis, I am assuming that the inherent quantum unpredictability of the physical world at the truly micro-level doesn't matter, either because the neuronal scale is large enough to wash out any quantum effects or because, contra Penrose, the quantum effects cause changes in the brain but are not caused by them). Suppose you become convinced (by the scientific and philosophical literature) that you lack free will, even though you feel like you have it. I suspect you would go on acting more or less as you were before, because there isn't much of an alternative. Likewise for Justices who become convinced (by the poli sci literature) that despite feeling that they are deciding cases according to legal doctrines and the like, they are (mostly) just voting their values. They should keep trudging on as before--as they surely will.

Saturday, July 24, 2010

From the Department of Shameless Promotion, I have the following announcements:

1) As in past years, I'll be appearing again as a panelist at the annual Supreme Court roundup session of the Practicing Law Institute. The program is all day August 3 in PLI's midtown office, and features a star-studded lineup (Erwin Chemerinsky, Tom Merrill, Drew Days, Sherry Colb, Jeff Toobin, Joan Biskupic, Burt Neuborne, Marty Schwartz, Leon Friedman, and for comic relief, moi.) PLI is a non-profit provider of Continuing Legal Education. If you can't make the live session, you can listen in via the live webcast. And there are full and partial scholarships available for academics.

Friday, July 23, 2010

Two years ago tomorrow, I posted "Meat, Dairy, Psychology, Law, Economics" on this blog, discussing my decision earlier that week to become a vegan. I wrote a follow-up post a week later, discussing the important work of animal rights lawyers, in particular that of my colleague Joan Schaffner at GW Law School. Last July, on the first anniversary of becoming a vegan, I posted some thoughts on the nuts and bolts of being a vegan, reflecting on my first year of refusing to support in any way or participate in the torture and killing of sentient beings.

Now that another year has passed, I thought I would offer a few more thoughts on being what one might call a "pedestrian vegan," that is, someone who strongly believes in and acts upon the moral implications of recognizing animals' right not to be exploited for any reason, but who does not write in an academic or professional capacity about vegan issues. I am glad that Professor Colb continues to write in a passionate, compelling, and deeply intellectual voice about vegan issues (the two most recent examples on this blog being here and here, on July 8 and 12, respectively). My thoughts are much less well articulated, and they are not based on the breadth of knowledge that Professor Colb brings to these issues. Even so, I know that some readers of this blog are considering taking up veganism; and I hope that my very occasional updates on my experiences as a vegan might offer support to those readers and, perhaps, even encourage others to make this life-affirming change.

Two years on, I can report that being a vegan is both very easy and needlessly difficult. It is easy in the sense that there is a very short learning curve to becoming a vegan, essentially involving a one- or two-week period during which one re-learns what one can buy in grocery stores and restaurants. There is no problem with having adequate vitamins in one's diet; and replacing leather and similar items is a simple, one-time matter.

Being a vegan is needlessly difficult, however, for a number of reasons. First, while vegan products are out there, they are not at all easy to identify; and there are few reliable guidelines other than reading the lists of ingredients on every item that one buys. (Because I tend to stick with something when I like it, this is admittedly easier for me.) Also, most restaurants have very limited vegan options, meaning that the fun of eating out is tempered by being forced to choose from one or two items. I also find that it is difficult to find something other than nuts or chips as a snack, when I am in an airport or a convenience store. Even so, I have never been literally without a vegan option. As anyone who has seen me lately can verify, I am not starving.

Another needlessly difficult -- or, perhaps more accurately, annoying -- aspect of being a vegan is that people feel free to express (typically very ignorant) opinions about me or about veganism in general, making it tricky to discuss vegan issues in various contexts. Here are three common examples of this phenomenon:

(A) Perhaps because I spend so much time with lawyers and lawyerly-types, I find that the most common response to "I'm a vegan" is for a person to try to explore the boundaries of my moral position. Essentially, a person will try to get me to admit that there are circumstances under which my objections to eating or wearing animal products would be nullified. For example, a person will ask whether I'd be willing to eat a cow that died of natural causes after a healthy natural life, or whether I could kill a pig that did something that was a threat to my life. Last summer, after my first anniversary post, there was a particularly spirited exchange on the message boards of this blog after two posts by Professor Dorf (here and here), in which most of the conversation involved setting aside the reality of how animals are treated (all sides agreeing that those real-world practices are morally repugnant) and instead discussing whether there is a valid moral objection to all uses of animals, no matter how humanely they might be treated.

Although I find such a discussion interesting, being a pedestrian vegan means that I do not have to answer the question of what I would do if, say, a goat broke into my house and threatened me with a gun. Even if there might be circumstances under which one could imagine making an exception to veganism, I have not yet heard them; but more importantly, none of the animal products that are now (or will ever be) available for me to buy would even come close to passing any such test. At this point, I find the notion of ingesting or wearing animal products as disgusting as I would find eating or wearing products made from human bodies. There are mildly interesting hypotheticals about when a person might morally turn to cannibalism, too; but they do not make me reconsider my views on eating people.

(B) On a more personal level, people will sometimes take as a given that there is something wrong with being a vegan -- some kind of psychosis that has caused a misguided soul to become a deviant. For example, I learned that a member of my family has concluded that my choice to become a vegan is the result of my inability to get over the loss of my beloved pets. The idea is that I am to be indulged, because I supposedly just cannot see past my grief to understand that normal human beings eat meat. At some point, supposedly, I will "get over it" and get back to being an omnivore.

Even without the pop psychology back story, there is also the question: "Are you still a vegan?" This can, I hasten to say, be a very positive question, asked in a hopeful and supportive way. Asked in a different tone, however, it is nothing more than the "get over it" reaction without even an attempt to explain what "went wrong."

(C) As I noted above, eating at most restaurants can be somewhat difficult, because there are so few choices that do not involve meat or dairy. Even the restaurants that have one or more veggie options usually make those dishes with dairy products, making it necessary to specify carefully to the server that those ingredients must not be included in the meal. This, in turn, raises a difficult strategic question: What should one say to a server?

My experience has been that saying, "I'm a vegan," is likely to elicit blank stares. Even when one adds, "... which means that I do not eat meat or dairy products," servers can be quite obtuse. (I remember a server at a supposedly vegan-friendly restaurant in St. Louis telling me that cream of mushroom soup is vegan, because there is no meat in it. She persisted even after I tried three times to explain the difference.) By contrast, I have tried simply ordering non-meat options and then saying, "I don't eat dairy products." When I do that, I have found that the servers often go out of their way to tell me that, for example, a particular tomato sauce has cheese mixed in.

The obvious explanation for this reaction is fear of lawsuits. If a restaurant serves dairy to a vegan, there are no consequences. The server/restaurateur might well think: "Why should I bend over backward for some crazy vegan? Just give him the usual stuff, but tell him whatever he wants to hear." On the other hand, if they serve dairy to someone who is lactose intolerant (after they have been told that the person does not eat dairy), then there can be real trouble.

The problem is that using this ambiguous phrasing cuts in opposite directions. It does mean that I have much less chance of being surreptitiously served non-vegan food. On the other hand, by doing this I am choosing not to confront biases against vegans and veganism. This is an old conundrum that all non-majority populations face, and it is just as troubling for me as a vegan.

These difficulties, however, are more than offset by the health advantages, the environmental friendliness, and -- most importantly -- the moral implications of choosing to love all animals. Once you've experienced it, you will wonder what took you so long.

How did all of this socialism creep up on us unnoticed? How did we miss it? And what next – will we be wearing socks with our sandals, working 35 hour weeks, taking month-long vacations, getting effective and inexpensive health care, child care, retirement security, and discussing art or unanswerable philosophic questions at sidewalk cafes like the socialists of Europe? Say it isn't so.

I’ve got a suggestion to make: let’s Stop Socialism Right Now. That's right: SSRN. Got a problem with terrorists? Round up your like-minded friends, pass around a collection plate, and hire a firm to go take ‘em out. Worried about drugs or drug dealers? Same story – find a company to pay to go out and stop people from smoking, inhaling, or otherwise imbibing or doing things you think that they shouldn’t do or imbibe. Want to take down a monstrous dictator somewhere, or stand up against fascist or communist aggression? Very well then, pass the plate. What to put into the plate? Well, not dollars; those are printed by the government and therefore are socialized currency. Better then to put in the plate what the people you’re hiring want – food, clothing, watches, jewelry, personal services …let's barter!

What about roads, bridges, power grids, courts, crime? Same thing: let companies compete for our traffic or other business. Let firms lay roads, tracks, bridges, grids, where ever they can buy - or rather, barter for - land. Then let them compete for our traffic – even if they all run side by side. That might make for an awful lot of pavement and a whole lotta wires all over the place, but prices will be lower. And we’ll be more free! How about courts, legislatures, cops and so forth? Easy: let people buy justice. Somebody robs you, go hire a private cop to go get ‘em. Somebody injures you? Hire a firm to extract compensation - in kind. When private courts and cops have to compete for our business, they’ll be more efficient, less expensive. And we’ll be more free.

You may say I'm a dreamer. But I'm not the only one. Some people look at the world and say 'why?' I look at what could be and say 'why not?' What I'm suggesting here, it's not so radical. It’s even been done before. It’s how armies, police, courts and so forth worked in late Greece prior to the Macedonian takeover, and in Rome shortly before Caesar. With such classical antecedents, who could object?

Wednesday, July 21, 2010

In my column for this week, I analyze an Oklahoma abortion law that protects doctors from liability for failure to disclose fetal anomalies to their patients. The column discusses the important ways in which such a law differs from the more common abortion legislation (providing for waiting periods, parental consent or notification, etc.) and is arguably more legitimate as a result.

In this post, I want to focus on a different Oklahoma abortion law that was passed on the same day as the non-disclosure measure. This law requires that women seeking an abortion must be shown a fetal ultrasound. It specifically mandates that a doctor or technician set up the monitor so the woman can see it and describe the heart, limbs and organs of the fetus.

There is, of course, a certain irony in Oklahoma's requiring that providers give pregnant patients unwanted information about their fetuses even as it simultaneously protects providers' freedom to conceal other wanted information from their patients. Putting the hypocrisy aside, however, it is worth considering whether it is appropriate to compel people to confront the consequences of their morally-freighted decisions.

Imagine, for example, that before deciding whether or not to register as an organ donor on one's driver's license, a driver was required to listen to an information session. The session might include facts about the people on organ registry waiting lists, the physical and emotional suffering that they and their loved ones undergo as they hope against hope for a donation, and the number of compatible donors whose potentially life-giving organs are buried in the ground every year when they could have saved lives, if people had only checked off the donor box on their driver's licenses. If donation is the right thing to do -- but not something we feel may be appropriately forced on anyone -- such an information session would seem quite appropriate.

Imagine now that those who sell animal products had to include on the packaging some of the facts about the animals who suffered and died to make the products. For example, containers of cow's milk would, instead of the deceptive drawings of contented creatures grazing around with their children, have to include a list (or some subset) of the following facts:

After they give birth, cows exhibit the same maternal behavior and reciprocal attachment to their babies that humans do.

Baby calves are taken away from their mothers long before they would naturally stop nursing, a separation accompanied by both calves and mothers bellowing and exhibiting great distress.

This separation occurs so that milk that cows produce for their babies can be extracted instead for human consumption.

Calves, if male, are considered low-quality byproducts of dairy and are killed as babies to make veal.

Female cows are slaughtered along with their babies after only a few years of life, when their milk production drops off. Many are pregnant when slaughtered.

Transporting the animals to slaughter subjects them to extremes of temperature, crowding, and pain, and many can barely walk when they arrive at the slaughterhouse.

The slaughter process itself is terrifying to animals, who produce adrenaline and other stress hormones and vocalize loudly in a manner that sounds like human screaming.

After their throats are cut, many cows remain conscious for several minutes as they suffocate to death by drowning in their own blood.

Humans are the only mammals who consume another animal's mammary secretions as adults.

Countries in which people consume little or no dairy have far lower rates of osteoporosis than the United States.

I would think that people should have this information before they decide to purchase and support the products of the dairy industry.

How is any of this relevant to the fetal information sessions to which Oklahoma and other states subject women seeking an abortion? It demonstrates that people confront life-and-death moral decisions in many arenas well outside of the abortion context. Yet only when the decision-maker is a woman and the decision to be made is about whether to remain pregnant do legislatures see fit to require people to face the reality of what they are about to do.

I am of the view that it would be beneficial for people to face and understand the truth about the violence from which we so often turn our heads. People should be thinking about the other beings, human and nonhuman alike, who will suffer and die because of choices that they make and that could easily be made differently. I understand, of course, that people want to be able to make their choices and put the harmful consequences out of sight and out of mind. This desire, however, is ultimately destructive. It emotionally externalizes the true costs of the decisions that we make every day.

Such externalization is ubiquitous, however, such that one has to wonder why, when it comes to pregnant women who want to terminate their pregnancies, the government sees fit to make an exception to it. Such gross under-inclusiveness suggests that rather than ensuring that people have enough information to make informed moral decisions in their lives, those who support fetal information sessions are concerned exclusively with the sexual-moral health of women, an exclusivity that bespeaks sexism.

Tuesday, July 20, 2010

The almost-farcical nature of the Russian spies caught snooping on American suburbia has the potential to obscure what to me is the deeper problem posed by espionage more generally. Some--including my favorite alarmist Israeli website trading in rumors--have suggested that the spy exchange was merely the tip of an iceberg, and that the clownish spies sent back to Mother Russia are something on the order of decoys.

Perhaps, but the deeper problem posed by espionage is, of course, that while it is illegal, just about everyone does it. To be clear, espionage as such does not violate international law. Indeed, a case can be made that given the ubiquity of peacetime espionage, customary international law makes it legal. (For an abbreviated version of this argument, see the Keynote address to a 2007 symposium on intelligence gathering and international law by Jeffrey Smith, former general counsel to the CIA. For the full symposium, go to the Michigan Journal of Int'l Law and click on the articles in Vol. 8, no. 3.) But again, even though legal (or at least not clearly illegal) under international law, espionage is illegal as a matter of domestic law just about everywhere. And so our decision (and the reciprocal decision of other sovereigns) to spy on other countries--even those with which we have friendly relations--is a decision to flout the laws of those other countries.

Why is that a problem? The answer, I think, is that it tends to spread lawlessness. Not general lawlessness, to be sure. The fact that the U.S. has spies working in our embassies and on the streets of Moscow does not mean that the State Department is robbing banks in St. Petersburg, but it does--or at least could--contribute to the lawlessness around intelligence gathering.

This bleeding over from the flouting of local laws forbidding espionage to the flouting of international law restricting means of intelligence gathering was very much on display during the Bush Administration, and most importantly, we were so informed early on. When VP Cheney said that the government would be working "in the shadows of the intelligence world," what exactly did we all think he meant? Given that, from the perspective of domestic law, just about the entire intelligence world is in shadow, presumably Cheney meant something even shadowier. What I'm suggesting here is that the routine acceptance of illegal conduct as simply part of ordinary intelligence gathering conditioned both policy makers and (to the extent that we were paying attention) the general public to think that law is not a real constraint on intelligence gathering.

Monday, July 19, 2010

Law professors and pundits sometimes refer to Supreme Court confirmation hearings as an opportunity to educate the public about the work of the Court. As I and others have noted, given the posturing involved, the education thus provided is at best uneven. Nonetheless, confirmation hearings do surface concepts and issues that do not ordinarily register on the public consciousness--matters like stare decisis and the role of history in constitutional interpretation.

Other major news events can and do educate the public about other aspects of law, of course. One thinks about the OJ trial, the Clinton impeachment, etc. To that illustrious list, I would now consider adding the news coverage of the financial reform bill that President Obama will sign this week. Having paid reasonably close attention to the coverage of the bill as it worked its way through Congress, I think it fair to say that the public has very little understanding about what the bill contains (e.g., will it prevent, encourage or have no impact on future bailouts?) but that the bill did bring to the forefront a phenomenon that we public lawyers know quite a bit about but that is generally below the surface in public discourse: regulatory capture.

Just about every major new legislative initiative passed by Congress leaves substantial gaps that then must be filled in through administrative agencies. Those agencies are subject to the perverse logic of collective action: The public interest in effective regulation is diffuse, while the private interest in avoiding regulation is concentrated, and so the regulated industries will have a built-in advantage. Add to that the possibility of corrupting relatively poorly paid regulators (See, e.g., Mines and Minerals, Department of) and you have the phenomenon of regulatory capture.

Despite the ubiquity of this dynamic, my own subjective sense of the coverage of the financial reform bill is that to a much greater extent than usual, the media have pointed out both: (a) that the bill leaves very important details to be filled in; and (b) that this means that Wall Street banks have the opportunity to gut whatever substantive checks the bill was supposed to provide. I'm not sure exactly why the coverage of this legislative effort has been different, but I do think it is potentially a positive development. In the conventional view, members of Congress pass tough-sounding laws that then get undermined at the implementation phase by some of the very people and entities who make campaign contributions to those members of Congress--and this works because once the seemingly landmark legislation is passed, the public loses focus. Perhaps as a result of the recent coverage, the public will remain alert to the possibility of regulatory capture, which in turn will make it slightly less likely in this instance.

Friday, July 16, 2010

In my FindLaw column this week (available here), I continue to explore our crazy new world in which deficit-financed stimulative policies are deemed unacceptable, even in the weakest economy in over 70 years. I use a Washington Post editorial from a few weeks ago (here) as an especially noxious example of two things: (1) the seething disdain, among adherents to the inside-the-Beltway consensus, toward those who propose further stimulus, and (2) the claim that those who propose stimulus today must prove their seriousness about cutting future deficits by also proposing a long-term deficit reduction plan.

The latter argument is an especially odd form of ad hominem attack. The issue, say the Post's editors, is one of credibility. Why should we listen to someone who has a proposal to solve today's problems, if they have not already come out with a proposal to solve tomorrow's possible problem, too? The silliness of that argument is obscured by the fact that the word "deficit" is in play; but there really is no connection between possible changes in today's deficits and the possible problem of exploding annual deficits stretching decades into the future. (I continue to be skeptical about those long-term forecasts, but we can accept them arguendo for the time being.) If we face exploding deficits in the future, the difference made by today's possible stimulus spending will not matter in the least. In the meantime, the economy can better handle the deficits going forward if the economy recovers quickly.

The Post's editors (and others who make similar arguments) never quite say that stimulus is out of the picture. This is important, because otherwise they would have to argue that an economy with 10% unemployment cannot possibly be helped by further spending. This would require them to adopt something like the baseless argument that I discussed in my Dorf on Law post last week (here), saying that deficits are actually contractionary because they scare businesses into a catatonic state. Paul Krugman's column from last Friday (here) did a particularly good job of destroying that argument, using evidence from surveys of businesses. As Krugman points out, you can always (no matter the state of the economy) get businesspeople to say that they hate deficits; but there is no evidence that they would not hire more people in a stronger economy, notwithstanding the level of the deficit or debt.

Therefore, those (like the editors at the Post) who hold themselves out as sober realists have to come up with a way to change the subject: "But as analysts ponder the mystery of weak private-sector hiring despite signs of economic growth, it's worth asking what role is played by government-induced uncertainty. With the federal government promoting major changes in health care, financial regulation and energy law, it wouldn't be surprising if some companies are more inclined to wait and see than they might otherwise be. And that's especially true when they look at looming American indebtedness and the effect that could have on long-term interest rates." This is a very clever move. It is not that deficits themselves are now anti-stimulative -- or at least, it is not exactly that. It is that the government is doing so much that it has undermined its own ability to encourage economic expansion. If only we had not decided to deal with the health care crisis, the financial crisis, or the energy/environmental crisis, then we would be able to deal with the economic crisis. (Why do I suspect that, if we had not dealt with those other issues, the Post's editors would be saying: "Until the federal government deals with the looming crises in health care, financial regulation, and energy, businesses will take a wait-and-see attitude no matter how much stimulus is provided"?)

Again, however, all of the evidence suggests otherwise. These attempts to read the minds of America's businesses, looking for reasons why they are not hiring, are ultimately a search for excuses to do nothing. Businesses do not begin to hire workers in large numbers immediately upon a change in the economy's direction; but they certainly will not begin to hire workers until the economy definitively changes direction. And as I argued again in my FindLaw column, there is nothing available right now other than federal spending (financed by deficits) to push the economy in the right direction.

What makes all of this especially depressing is that it validates the perception in the rest of the country that the crowd in Washington does not really care about the most serious problems facing people's lives. When important voices like the supposedly-liberal Washington Post engage in nasty attacks on those who support the only available solutions to the current economic crisis, the message is that nothing can be done. Perversely, this then feeds the public's conviction that deficits are bad, because too many people have become convinced that deficits are the selfish creation of the very politicians who seem not to care about regular people's economic pain.

All of which brings us back to the question of credibility. The Post's editors and others say that we cannot listen to those who want another round (or more, as necessary) of stimulus, because the pro-stimulus crowd is not sufficiently vehement in opposing long-term deficits. On the other hand, we have yet to hear any of those critics enthusiastically embrace additional short-term stimulus. (The most we can get from the Post is this: "Maybe a case can be made for another round of unemployment benefits and other spending that reaches the economy quickly." Be still my beating heart.) Until they show that they really care about solving the problems immediately facing the economy (and destroying the lives of millions of Americans every day that we delay), then there is no reason to take their calls for "hard choices" seriously.

If the choice is between someone with a solution today and (maybe) no solution tomorrow, or a person who denies the problem today and focuses on a possible problem tomorrow, the choice of whom to listen to today should be easy. Except, apparently, in the U.S. in 2010.

Thursday, July 15, 2010

In the wake of the collapse of its economy, Iceland is apparently trying to remake itself as a haven for freedom of speech and the press (as reported, e.g., here and more recently here). The island nation is in the process of passing laws that would provide the world's strongest reporter-source shield, prevent the execution of defamation judgments from places like the UK, and generally make the country an attractive locale for outfits like Wikileaks to operate. This is a quixotic enterprise even if a worthy one.

Why quixotic? Principally because there isn't necessarily a lot of money in being a press haven. In fact, it would seem quite the opposite. It's easy to see why the leaders of a country might want to become a tax haven: Attract investment and boost the local economy. Likewise, a country may seek to become a copying haven through nonenforcement of IP rights. I think such strategies are probably a bad idea in the long run--as they discourage full engagement with the global economy--but one can see how they might work in the short run and in some instances (e.g., Switzerland until recently) may even be compatible with full participation in the modern economy. But journalism? The decreasing revenues of news organizations are an extremely well-known and largely tragic story about the downside of modern communications. It's hardly clear why Iceland would benefit from inducing major news organizations to relocate to Reykjavik so they can go bankrupt there rather than in their previous homes.

Nor is it at all clear to me that it's even possible for Iceland to become a journalism haven. Let's say you publish a web-based pull-no-punches news magazine but you're worried about being prosecuted for revealing state secrets or sued for defamation or whatever. You move your servers and your main offices to Iceland so that they can't be attached to satisfy a judgment in the UK or some other place with less journalism-friendly laws. So far so good but now what? You can produce as much commentary as you want but if you want to actually report in the sense of going out and gathering facts, there's only so much you can do from your frozen island perch. Yes, you can do like Wikileaks by accepting all manner of computer files, emails, etc, and then posting them on your website, but that is hardly all that is needed for a full-service journalism operation. You also need to send people and equipment out into the field, and when you do, they will be subject to the laws of other sovereigns.

The plan to make Iceland a journalism haven rests on the notion that laws operate in discrete territories whereas ideas know no boundaries. But that's probably wrong. The very thing that provides Iceland with the possibility of shielding journalists--its authority over its territory--is what undermines this project: The stories worth gathering exist in other discrete territories with their own laws. Until we're all brains in vats connected to the Matrix, that fact will make it hard to run a journalism haven.

Wednesday, July 14, 2010

With the benefit of a bit of distance, I want to discuss an issue that has gnawed at me for some time: What was going on with the lawyers for the Christian Legal Society (CLS) in Christian Legal Society v. Martinez? For a good account of the case, I recommend Vik Amar's FindLaw column (and not just because he credits my "expertly crafted" brief). As Vik notes in his column, much of the action took place beneath the surface of the case, in two concessions made by the CLS lawyers: first, in the lower courts, they stipulated that Hastings has an "all-comers" policy; and second, at oral argument, Michael McConnell accepted the characterization of the case as falling within the "limited public forum" category. (He actually said Hastings had created a "limited designated public forum," a term that has not been used by the Supreme Court but that does appear in lower federal court opinions.) As Vik notes, McConnell might have had a shot at getting the Court to treat the case as involving a designated (i.e., not limited) public forum, as to which a tougher standard would have applied.

I honestly don't know why the CLS lawyers stipulated that Hastings has an all-comers policy (only to then run away from the stipulation in the Supreme Court) but I would point out that it need not have been incompetence. In fact, I doubt it was. I suspect that they were hoping for a big win. By stipulating to somewhat unfavorable facts and nonetheless winning (as the lawyers may have thought they would), they could have established the broadest possible right for their client. After all, the impetus for this lawsuit and others like it is the national organization's desire to promote its "Statement of Faith" with all of its affiliates. If an all-comers policy had been declared invalid, that would have been a big victory indeed.

With respect to McConnell's argument, I have another hypothesis: I think McConnell went out of his way to formulate an argument that would not leave CLS open to being characterized as homophobic. He resisted the suggestion by Justice Ginsburg at oral argument (and by me in the AALS brief) that his position entailed a right of a white supremacist student organization to exclude African-American students. He attempted to distinguish such an exclusion as status-based, whereas CLS, he claimed, only wanted to exclude people based on beliefs. He thus ran away from what I regard as the core of the right to expressive association--the notion that some associations, by their nature, undermine a group's message.

McConnell's tactical choice was to his credit. Although conservative, McConnell is not a bigot, which is why I was happy to support his nomination to the bench. But McConnell's efforts to distance himself and CLS from an expressly anti-gay message left him defending a murky position and highlighted the deepest irony of the case.

Justice Alito said in his dissent that the Hastings policy exemplified the proposition that there is "no freedom for expression that offends prevailing standards of political correctness in our country's institutions of higher learning." This was clearly false, as Justice Alito's own dissent illustrates: Hastings has no problem with a pro-life student group and a Republican student group, so Hastings is not enforcing a liberals-only policy for speech.

The only real injection of political correctness into the case came from McConnell on behalf of CLS: Afraid (for admirable reasons) of coming across as anti-gay or otherwise bigoted, he did not make the strongest case available by simply asserting that the right of expressive association means a right to exclude on the basis of whatever status undermines an organization's message.

Monday, July 12, 2010

In my latest FindLaw column, I analyze the government's lawsuit against Arizona and the recent D. Mass decisions invalidating Section 3 of the Defense of Marriage Act, as applied to Massachusetts. I focus on two related issues: 1) How rights and federalism intertwine; and 2) the fact that states' sovereign interests need not be conservative relative to liberal federal policies. Neither point is especially novel but the juxtaposition of these two high-profile cases nicely illustrates both. Here I want to raise a somewhat more technical legal point about the lawsuit against Arizona, having to do with the legal standing of the federal government.

First, a very brief review of general principles. Article III empowers federal courts to hear "cases" and "controversies." That language, along with the background notion of separation of powers, has been the source of a set of modern limits on the jurisdiction of federal courts. The Constitution, under current doctrine, does not allow federal courts to issue advisory opinions, for such opinions do not arise in live "cases" or "controversies." Thus, a case that is not yet ripe, or which is moot, or in which a party or parties lack a real stake in the outcome, is not within federal jurisdiction. That last requirement goes under the name of "standing." It is typically contested in a case in which a private party sues either the government or another private party to stop some alleged future wrong. Unless the harm is "concrete," "imminent," and "particularized," the courts will disallow the suit.

Standing doctrine rarely plays a role in cases in which the federal government acts as plaintiff or prosecutor, but it lurks in the background. If the federal government prosecutes Robbie the Robber for bank robbery in violation of federal law, the government's concrete stake is its sovereign interest in enforcing the law. Usually when the government sues or prosecutes a case that sovereign interest is at stake, but this does not mean that the federal government automatically has standing in every conceivable case. Suppose a drunk driver negligently operates his car, crashing into my house and causing substantial property damage. I can sue the driver but the federal government has no interest in this dispute. If I choose not to sue, the driver still may be prosecuted by the state of New York for DUI, but that's because the driver's conduct infringed the state's sovereign interest in the enforcement of its penal law. Assuming that the driver violated no federal conduct rule, the federal government is a stranger to this dispute, and thus has no basis for suing.

But does this mean that the federal government has standing to sue to enforce all federal laws and constitutional provisions? Perhaps. To be sure, Congress can, in writing a statute, deprive the federal government of the power to sue to enforce. In essence, whenever Congress writes a federal statute, it is a question of statutory construction whether that statute authorizes enforcement actions in court by the federal government. (There is also a question of statutory construction whether statutes authorize enforcement via private rights of action: Of late, the answer is basically no, unless the statutory language clearly confers a private right of action.) Apart from statutory limits, are there any Article III limits on the ability of the federal Executive to bring suit to enforce federal law?

That question is lurking in the Arizona case. Clearly the federal government has standing to bring the case it has brought. Its complaint and brief in support of its motion for a preliminary injunction set out the federal government's sovereign interest in resisting Arizona's efforts to "over-enforce" federal law. (I explain in the column why the government legitimately believes such over-enforcement impairs federal interests.) In fact, the federal government seems like the ideal plaintiff to bring a lawsuit against a state claiming that some state law is preempted by federal law, even though preemption typically arises in litigation between private parties and the state: A state attempts to enforce some law against private party and the private party defends on the ground that the law is pre-empted by a federal statute; or a private party brings a lawsuit to enjoin the imminent enforcement of some state law that she alleges is preempted.

But now consider the next possible lawsuit. Suppose the federal government were to bring suit against Arizona to enjoin enforcement of its immigrant-detention law on the ground that it will lead to violations of the equal protection and Fourth Amendment rights of Latino/Latina-appearing U.S. citizens residing in Arizona. There could be a ripeness question of the sort that would arise even in a private suit, but let's assume that enforcement is sufficiently imminent to overcome that. Isn't the federal government nonetheless attempting to assert the rights of others? What is the government's concrete stake in such a case?

The answer, I think, is that the federal government ALWAYS has Article III standing to sue to enforce a federal obligation. Presumably this is why there is no problem with Congress having authorized the Justice Department to bring various civil rights lawsuits, regardless of whether the underlying rights are statutory or constitutional. The federal interest in preempting a state law that is inconsistent with federal immigration policy seems obvious because we imagine the case as a conflict between Arizona and the U.S. But we also have a conflict between Arizona and the U.S. if Arizona is allegedly violating anybody's federal rights.

None of the foregoing is to say that a lawsuit by the federal government--as opposed to litigation by private parties, administrative action, or some other means of dispute resolution--is the best approach to such cases. But it does suggest that Article III standing (as opposed to other Article III limits or statutory limits) should just about never be an obstacle to a suit by the federal government to enforce federal law.

Interestingly, there appears to be some contrary authority in the federal appeals courts, elegantly discussed (and criticized) in section 3531.11 of the Wright & Miller treatise. To my mind, however, the arguments advanced in the contrary authority do not really go to show that the federal government lacks Article III standing but go more to how to construe congressional silence on the question of whether there is, or needs to be, statutory authorization for the federal government to sue to enforce federal law.

What follows is Part II of exchanges between Sherry Colb and Melanie Joy, inspired by Professor Joy’s book, Why We Love Dogs, Eat Pigs, and Wear Cows: An Introduction to Carnism. (For Part I, click here.)

From SC to MJ:

Hi Melanie. I look forward to the longer version, but I wanted to offer a brief response to your email. I agree that even vegans cannot be “pure” in their veganism if they are to participate as a member of a society in which almost everything includes some incidental animal products or results from animal testing or both. That just means, though, that even vegans are not perfect (which will not be news to anyone who either is or knows a vegan!). If one is a vegan, however, one attempts to the best degree possible, to eliminate these products from one’s life and diet. If one is instead lacto-ovo vegetarian, then one is probably not eliminating these products at all but merely substituting some for others. For that reason, I see a difference between a person who is transitioning to veganism (whether through vegetarianism with reduced eggs and dairy or whether through omnivorous consumption with vegan days each week or meals each day) and a person who has stopped and decided either that (a) dairy and eggs are okay, while flesh is not (b) “food” animals (like pigs) are okay, while friendship animals (like dogs) are not, or (c) all nonhuman animals are okay.

With the dramatically increased modern consumption of animal products, I think many people find it difficult even to imagine a meal without animal products, but we know that cookbooks and web sites offer an amazing abundance of possibilities, for simple cook and creative chef alike. At times, I wonder whether you underestimate people’s capacities for change and growth. Though change can be scary, it is also exciting and invigorating, and there is so much to learn and discover, whether one most enjoys processed foods or whether one is interested in moving toward a more whole-foods oriented diet of the sort that T. Colin Campbell has urged.

Best,

Sherry

From MJ to SC:

Hi Sherry,

I’ve had some time to mull over your points, and to sit down to write back. I want to say that yes, as a vegan myself, I completely agree with you about the cruelty and horror of the egg and dairy industries and that yes, of course, the vast majority of these products come from such conditions. (When I said they’re not inherently cruel, I meant they can be procured without cruelty; and yes, so can flesh, but many animals, as far as I am aware, have a natural aversion – disgust, perhaps – to the flesh of an already dead animal, as this flesh is dangerous to consume.) And I concur that we need to raise consciousness and promote veganism, among vegetarians as well as carnists. I also agree that carnistic conditioning is the reason people can, for instance, drink cow’s milk but not rat’s milk or eat hens’ eggs but not pigeons’ eggs and that carnistic numbing plays a role in many vegetarians' ability to consume animal products.

However, I do believe that there is a continuum between carnism and veganism, and among carnists and vegans. I am not referring to a moral continuum, because I find the concept of moral superiority/inferiority impossible to qualify or quantify, to be socially constructed, and ultimately counterproductive. The continuum I’m talking about is one of behavior and mentality. For example, there are carnists who consume the flesh and secretions from a variety of animal species, multiple times a day, without any reflection on their consumption patterns whatsoever. The carnistic mentality is rigid, with a high degree of numbing. Then there are carnists who have, for instance, cut out certain types of flesh products from their diet, as they have become sensitized to consuming the flesh of these animal species. And there are carnists who rarely eat any animal products at all but haven't actually become vegetarian. Then we have so-called pescetarians, who may be sensitized to consuming all animal flesh except that of fish and other sea life, then vegetarians, who may consume varying degrees of dairy and/or eggs. There are flexitarians, freegans, and vegans who will, for example, eat soy cheese that has casein or wear used leather or buy sunscreen that contains animal products. Yes, as you point out, vegans are making “attempts to the extent possible” to eliminate animal products from their lives, but the same could be said for vegetarians and other types of consumers. How do we determine what is the extent possible for another? It is possible, for instance, to avoid wearing non-leather shoes from Payless whose heels are affixed with animal-based glue. It’s possible to turn down the “vegan” cookies your mother-in-law made especially for you, because she used honey without realizing honey isn’t vegan. But we need to live in a way that is sustainable for ourselves, psychologically as well as practically, and so we will each draw our carnist, or vegetarian, or vegan line in different places.

I think it’s important that we, as vegans, hold a spaciousness that avoids the black-and-white thinking that we so often find in the movement. I think we need to avoid labeling in a way that ends up being counterproductive. (I’ve heard vegans say to other vegans, for example, “You’re not vegan if you eat soy cheese with casein!” The typical result from comments like this is that people throw up their hands and feel like it’s impossible to be truly vegan, so why try at all.) I think we need to be very careful to avoid creating a moral hierarchy, which inevitably labels those who aren’t ready to become vegan as morally inferior and which strengthens their carnistic defenses.

I also believe that we need to be careful not to project our own experience of veganism onto others. I became vegan fairly quickly; I gave up all flesh and eggs overnight, and then later dairy. Most people, however, do not transition this way. At least that’s what the small amount of research I’ve seen suggests, and what the large amount of anecdotal evidence I’ve accrued over the past two decades supports. Transitioning to veganism is a social, psychological, and behavioral process. Asking someone to become vegan is asking for them to take on an added dimension of a political identity; vegetarianism is often more of a social identity. People need to feel psychologically safe enough to shift their consciousness and identity from carnism to vegetarianism or from vegetarianism to veganism.

And for many people, it’s not easier, on a practical level, to be vegan than it is to be vegetarian. Given the carnistic world we live in, your options decrease dramatically when you eliminate all animal products from your life. Winters in Boston are awful for me. I won’t wear down or wool, nor will I wear silk (the only long underwear that’s thin and affordable enough for me). I can’t afford expensive thinsuate winter clothing or and the affordable vegan boots I wear never really hold up. And when I'm traveling, or eating out with others, it's far more of a challenge to eat as a vegan than it was as a vegetarian. So while I’m not saying it’s not rewarding to be vegan, or that veganism isn’t the ideal lifestyle, or that we shouldn't aspire to veganism,I do believe we need to be careful not to misrepresent the realty of the change to others, lest they become disillusioned and or feel pressured to live a lifestyle with demands they're not prepared to meet.

So, to wrap up, what I’m saying is that I think people are complex, change is a process, and I believe it’s more strategic as well as more accurate to advocate to others with an appreciation of these principles. People aren’t either compassionate or not; they’re compassionate in certain ways yet less so in others, more or less compassionate on certain days and in certain contexts . Vegans aren’t morally superior to vegetarians; we’ve simply taken another step that we’d like to encourage vegetarians to consider. And, I believe, we’re a lot more likely to get people considering these issues if we approach them with a spaciousness that gives room for people to make choices that are in alignment with their current level of awareness and ability. I’m not in any way saying we shouldn’t advocate for, or raise awareness of, the abolition of all animal products; I just think we need to advocate based on the orientation and capacity of our audience. I advocate veganism to vegetarians when appropriate, and veganism or vegetarianism to carnists, when appropriate.

I hope I've addressed all your questions. Thanks for all your insights, for challenging me to think more deeply, and for a very stimulating dialogue! Best wishes, Melanie

From SC to MJ:

Hi Melanie.

Sorry it has taken me so long to write back. I think we agree on so much that it’s worth emphasizing our points of agreement, just as you propose more generally for people within the animal-concerned community. We both understand that there is terrible cruelty involved in the flesh, dairy, and egg industries (as well as in the industries that produce clothing by exploiting and slaughtering animals, including wool, leather, etc.). That is why we both found our way to becoming vegans and withdrawing our support from these industries.

I also could not agree with you more that personal purity is not possible in today’s world, in which even roads and car tires are made with animal ingredients. In that sense, there is a continuum, even among vegans. Though it is a cliché, I find it worthwhile to remember not to allow the perfect to be the enemy of the good, in terms of either my own practices or my advocacy.

From a psychological point of view, I also agree with your observation that there is a continuum among approaches to animals. Some people have no consciousness at all about animals and are willing to eat, wear, or use any of them without a second thought. You’re right, I think, that such individuals have engaged in a high degree of numbing (comparable, for an emotional point of reference, to people who can kill other human beings without feeling any remorse). With emotional awareness of other animals comes sensitivity, and that sensitivity can express itself in a variety of ways, including decisions to refrain from consuming particular animals or categories of animals or animal products.

It may sometimes be easier to raise consciousness among people who have already taken steps in their lives to align their behavior with their values regarding animals, than it is to do so among people who seem to act as though animals exist entirely to serve as resources for humans. At the same time, though, I don’t find this to be invariably true. Some people have not questioned their consumption habits because they have simply never thought about the connection between the non-violence to which they are committed and food and clothing choices. They have learned throughout their lives that one ought to be kind to animals, but they have also learned that part of life is eating animals and their products. They perhaps find it almost unimaginable to live a happy, pleasurable life in the absence of animal consumption.

For such individuals, simply pointing out what happens to animals who are used to create flesh, dairy, and egg products (even on supposedly “humane” farms) can be enough to begin their journey to a more compassionate way of living. By contrast, people who are firmly committed to being ethical vegetarians and not vegans may be more resistant than many omnivores to the arbitrariness of carefully avoiding flesh while consuming large quantities of dairy cheese and yogurt every day. Such individuals will make comments like “I don’t know how people can eat things that come from slaughter and killing” while they regularly fry scrambled eggs in butter for breakfast. Part of what makes their line-drawing symptomatic of irrationality is that it is the same animals – cows and chickens, for example – whose slaughter is involved in creating the products that they eschew and the products that they embrace with abandon.

Once this fact is brought to their attention, their insistence that there is a rational distinction between dairy and flesh seems to require a great deal of numbing. In this sense, they are very much like the so-called “conscientious omnivores” who eat products marked “humanely raised.” They are both knowing and not knowing about the suffering in which they participate at the same time, even as they feel some empathy for animals.

There are, of course, a range of behaviors in which distinctions are drawn between different animals (e.g., dog versus cow), between different categories of animals (e.g., mammal versus bird versus fish), between different sorts of animal products (e.g., foie gras, veal, and fur versus chicken, dairy, and leather). In the case of each distinction, pointing out its weakness can serve to sensitize people. You do this very effectively in your book, by pointing out that dogs, cows, and pigs are not meaningfully different from one another and that, accordingly, one who finds the eating of dogs repellent should reconsider her willingness to eat cows and pigs as well.

My sense is that that such sensitization (or re-sensitization) is just as necessary for people who draw the other irrational distinctions that enable them to engage in behavior that would otherwise elicit guilt and dissonance. The fact that they do refrain from some kinds of animal cruelty serves as a useful building block for erecting a more coherent, vegan structure that no longer says “dog flesh wrong/cow flesh right or cow flesh wrong/cow milk right.”

I do agree with you that it is counterproductive to speak as though vegans are morally superior to vegetarians or omnivores. We are all flawed beings, and we hopefully evolve into better people over time and never stop growing more conscious and sensitive. It is useful, though, to think in moral terms about our relationships with animals and to view veganism and abolition of animal suffering as better than vegetarianism, even though the people are not better or worse than one another.

Psychologically, for example, there is a huge difference between the man in the United States who tortures his pet cat or dog in his basement and the man who enters a restaurant in a foreign country and orders a plate of “cat” or “dog” (or the U.S. scientist who performs vivisection on a cat or dog to test the toxicity of some household product). The first person is likely suffering from some form of anti-social personality disorder, while the second is probably “normal” relative to the rest of the population. Yet, as you illustrate in your book, the distinction between the two people – from the perspective of the victimized animal, the harm inflicted, and the degree to which such harm is deeply at odds with a vision of kindness and compassion to animals – is one without a difference.

To give you a different sort of example, much more numbing is required for a person to walk around a city and shoot at people one by one than would be required to enable a person to drop a bomb from an airplane onto a city. Even greater numbing would be required for the same person to walk into the same city with a knife and personally kill each of the people by stabbing him directly. This is doubtless true of many people who eat animal flesh and dairy and egg products but who would balk at having to do to animals what is required to bring their flesh and secretions to market. The closer the violence is, the more readily we empathize and the more potentially pathological our inability or unwillingness to empathize.

Yet I read your book not simply as a descriptive account of people who consume meat but also as a normative plea for greater sensitization. This is not to say that we, the morally superior, can lecture from on high to the immoral masses. It is, instead, to say that once we discover an injustice, we try to bring the injustice to light and call people’s attention to it, unvarnished by self-soothing (and socially popular) but unhelpful distinctions.

I say this as someone who did give up using different animals, a few at a time. When I learned about the warmth and playfulness of pigs, I began purchasing cow ears instead of pig ears for my dogs. My mom – quite reasonably – asked me at that time, “but what about Elsie the Cow?” I had no answer. Though I was, in my own way, expressing concern for animals by switching from pig ears to cow ears, in other words, I was actually engaged in an irrational substitution that did nothing to reduce the amount of animal suffering and injustice in the world.

I think it is useful to acknowledge when people take steps to express their concern for animals, but it is at least as important to explain why we view some of those steps as leaving the suffering and killing where it was before. Your project in the book does that, I think, by acknowledging the love we have for dogs and the horror we would feel upon learning that we were eating a dog, but then by also going on to tell us the truth – that what we do to cows and pigs and chickens is not different from or better than what we refrain from doing to dogs.

I agree with you that it is important to recognize that different people react differently to the practical challenges of abolishing animal use, and I think we need to be compassionate and supportive to people as they attempt to move their behavior to match up better with their values. At the same time, though, if the world is to change in a positive way, more people need to say – whether at a restaurant or at work or elsewhere – “replacing steak with dairy quiche or dairy cheese pizza does not help cows.”

Despite what I say here, I know that when I talk to people about abolition of animal use and veganism, those who are moved by what I say sometimes react with one of the positions you identify (vegetarianism, pescatarianism, or whatever). My hope is that they will eventually become vegan, so I try to be friendly and supportive but simultaneously to make clear that eating scrambled eggs is not different from eating chicken mcnuggets. It just “feels” different to people, because our culture has classified things that way, much as it has classified eating dogs as different from eating pigs.

On the subject of the challenge of finding coats and thermals to wear in Boston, I did want to take this opportunity – as a resident of Ithaca (also quite cold) – to share some product recommendations, for what they’re worth:

I hope this email finds you well, and I want to thank you for exploring these important issues with me. I too have found our dialogue to be a very stimulating and thought-provoking one that has forced me to think more carefully and thoroughly about my own views.

Sherry

From MJ to SC:

I agree with you on pretty much everything. I see from the statement below that you have a different experience than I do with some vegetarians toward veganism:

By contrast, people who are firmly committed to being ethical vegetarians and not vegans may be more resistant than many omnivores to the arbitrariness of carefully avoiding flesh while consuming large quantities of dairy cheese and yogurt at every meal. Such individuals will make comments like “I don’t know how people can eat things that come from slaughter and killing” while they regularly fry scrambled eggs in butter for breakfast. Part of what makes their line-drawing symptomatic of irrationality is that it is the same animals – cows and chickens, for example – whose slaughter is involved in creating the products that they eschew and the products that they embrace with abandon.

Once this fact is brought to their attention, their insistence that there is a rational distinction between dairy and flesh seems to require a great deal of numbing. In this sense, they are very much like the so-called “conscientious omnivores” who eat products marked “humanely raised.” They are both knowing and not knowing about the suffering in which they participate at the same time, even as they feel some empathy for animals.

I can say in all honesty that I've never had a conversation that reflects this attitude. Yes, I've heard vegetarians say they can't believe carnists eat flesh (I once said that myself) but when it's pointed out to them that dairy and eggs come from the same suffering, those I've spoken to have been completely open to the idea of veganism. Most vegetarians I speak to do know that all animal products result from animal suffering, but they minimize, in their minds, the suffering of so-called dairy cows and hens. Yet, they say they are "trying" to become vegan, or they are "moving toward" veganism, and are generally -- no, in my experience I can say consistently -- supportive of veganism, at least in theory. Perhaps my experience is unusual, but I haven't ever encountered the kind of defensiveness or resistance among vegetarians that you illustrate.

The other thought I've been pondering lately is one of social identity. A French speaker posted something on my book's French fan page saying something like "there's no 'culture of the egg' as there is a culture of flesh." And I think it's true. I think there's an identity that is involved in eating flesh that is not involved in eating eggs or dairy. Meat, and the consumption of meat, is culturally symbolic in a way that other animal products are not. I think this is part of the reason why I see vegetarians as having a very different self-concept, and consciousness, than carnists and the vegetarian self-concept, in my opinion, is quite close to the vegan one (in many ways; in others, not so much).

But yes, I do agree with you about always keeping our eye on the prize, and being careful to ask for veganism even if we only get vegetarianism. Absolutely.

Hope this makes sense! I'm still recovering from the semester. And I hope you're well and getting some time for a break...